‘Never again’ became a mantra following the horrors of the Second World War, and yet despite what I have no doubt was a genuine commitment to this at the time, since the end of that conflict, it seems that it has lost all meaning and is in fact ‘never again until the next time’.

The human race seems incapable of stopping itself from committing the wholesale slaughter, torture, and dispossession of people.

Time after time conflict erupts and the civilian, the people, the children, suffer, and time after time we hear the calls from across the world for accountability, for justice for those that have suffered, and for the prosecution of those responsible.

It is abundantly clear that the world was motivated to act, and mechanisms have been developed over the years, either specific to an individual conflict/situation, or on a more permanent basis i.e. the International Criminal Court (ICC).

The ICC was supposed to be a ‘game-changer’, the world court that had global reach that had the support of nations, and that would ensure that those responsible for actions that meet the threshold of War Crimes and/or Crimes Against Humanity would not escape justice.

It has however to a degree been frustrated in its work, and predominantly that frustration comes out of the geopolitical position, and the position taken by certain nations.  It hasn’t helped its own cause on occasion through its own history, but it is not by any stretch, the arbiter of its own criticism.

We hear comments about why nothing has been done for Syria for example, and I understand these frustrations only too well, having been part of teams that have sought accountability for Syria and sought to apply the developments in international law to the Syrian situation.

We hear comments about numerous other situations concerning what appears to be the lack of intervention from the ICC, but, the ICC is hampered in terms of the situations it can considered given it is reliant on a country accepting the jurisdiction of the Court, either by ratifying the Rome Statute, or, as Ukraine has done, by way of an Article 12(3) declaration, or a referral from the UN Security Council before it can begin to investigate.

Where the UN Security Council includes countries that they themselves might come under scrutiny, it is of no surprise that any attempt to refer a situation is rebuffed.

Russia is the prime example of this, having a stake in the Syrian conflict, and yet being a permanent member of the UNSC and therefore having a right of veto over any ICC referral.

We now have the news however that President Putin is subject to an arrest warrant issued by the ICC in respect of allegations arising out of the conflict in Ukraine.

This is of course a welcome development, but is it merely symbolic?  Is it realistic that Putin will ever be arrested.

We know that the ICC does not have its own police force and therefore it is reliant on states to enforce its warrants.  This of itself is not necessarily an issue, it is based on the assumption that States will not want to harbour war criminals and give them safe haven, and that all states will be committed to the prosecution of and accountability for the very worst of crimes, an assumption enshrined by the very fact that they are a state party to the Rome Statute in the first instance and therefore held to the obligations contained within Article 59 and 89 of the same.

The position is perhaps a little different when the individual is a sitting Head of State, and head of one as powerful as Russia.

The commitment of states to this principle of assistance has already been tested, and found wanting.

In 2015 Omar al-Bashir, President of Sudan, wanted by the ICC for offences arising out of the conflict in Darfur travelled to South Africa, and in doing so, South Africa as a State Party to the Rome Statute was obliged to effect the arrest.  It however, failed to do so, seeking to rely on the submission that customary international law provided immunity for Heads of State.  This was rejected by the ICC, finding that the provision of immunity within customary international law had been superseded by UNSC Resolution 1593 (2005) that referred Darfur to the ICC, and thus Sudan had been placed in the same position as a state party to the Rome Statute, and thus Heads of State can, under the Rome Statute be held responsible for offences in their individual capacity.  Regardless it does not change the fact that South Africa was obliged to effect an arrest and it failed to do so.

South Africa will likely fall under the world spotlight again this year as President Putin is due to attend the BRICS summit in Pretoria.  Will South Africa act as it is obliged to do so if President Putin does travel?  That question remains to be answered.

It is however a further example of how justice in the global arena is inextricably linked with politics and whether one state deems it politically expedient or otherwise, to act.

Aside from whether the arrest will be effected, there are comments from a number that the announcement of the ICC is any event a ‘bad move’ as it provides the President with further ammunition for his argument that the actions of Russia are in any event merely protective against Western aggression and expansion.

The actions of the ICC will of course be ‘spun’ by Russia in this way, but simply because a country will attempt to use something to their benefit, or use it to further its own propaganda, does not mean that those steps ought not to be taken.  To agree with this line and therefore restrict the work being undertaken is more damaging, as it undermines the independence of the ICC as an institution.

If we are to refrain from making the hard decisions or from taking the hard cases simply because it might be criticised or used against us what does that say about the need for accountability.

Accountability is hard, it is a difficult road to travel, and that is precisely why it has to be done, as if it isn’t we are failing the victims of those that are wanted for prosecution, and we are failing those that have sought accountability for others.

I don’t necessarily think that we will see President Putin in the Hague any time soon, but the actions of the ICC should not be seen as just symbolic; it demonstrates a commitment to act without fear or favour, and it demonstrates a commitment to the pursuit of accountability and international justice.  It demonstrates the independence of the Office of the Prosecutor (OTP) at the ICC and it demonstrates that the process of seeking accountability is alive and the wheels are turning.

Perhaps, as it is the first time that a member of the Permanent 5 of the UNSC has been subject to an arrest warrant issued by the ICC it will also cause some of those detractors that have seen the ICC as a colonial court, or one that is only interested in the ‘Global South’, to take notice, and perhaps develop confidence in the ICC as an institution.

The step taken by the OTP ought not to be dismissed, the step take is huge, further, it has the potential to have positive ramifications over and above its subject matter and therefore even if it is a symbol, it is a powerful one.